[2009] KEHC 2138 (KLR)
The court held that the Matrimonial Causes Rules constitute a comprehensive procedural code for matrimonial matters, and the Civil Procedure Rules do not automatically apply unless expressly incorporated. The respondent was duly served with the relevant orders and penal notice but failed to comply with the...
Source-derived case information.
- Citation
- [2009] KEHC 2138 (KLR)
- Parties
- Applicant: EKK; Respondent: PKM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 67 of 2006
- Procedural Posture
- Divorce Cause / Ruling on Chamber Summons for Committal for Non Payment of Maintenance
- Outcome
- application granted
- Judges
- KH Rawal
- Legal Topics
- Maintenance Orders, Enforcement of Judgments, Committal Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EKK
Applicant
PKM
Respondent
Procedural Posture
Divorce Cause / Ruling on Chamber Summons for Committal for Non Payment of Maintenance
Legal Issues
- 1 Whether the respondent should be committed to civil jail for failure to pay arrears of maintenance as ordered by the court.
- 2 Whether the Civil Procedure Rules apply to matrimonial proceedings for enforcement of maintenance orders.
Ratio Decidendi
The court held that the Matrimonial Causes Rules constitute a comprehensive procedural code for matrimonial matters, and the Civil Procedure Rules do not automatically apply unless expressly incorporated. The respondent was duly served with the relevant orders and penal notice but failed to comply with the maintenance order. The grounds of opposition based on the Civil Procedure Rules were rejected. The court found the respondent in default and granted the application for committal to civil jail for one month unless the arrears of KShs.675,000 are paid within 15 days, with costs awarded to the applicant.
Court Disposition
application granted
Orders
- The respondent is committed to civil jail for one month unless he pays KShs.675,000 within 15 days from the date of the ruling.
- If payment is not made within 15 days, the order of committal shall issue without further application.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 67 of 2006
EKK ……………………… PETITIONER
VERSUS
PKM…………………………… RESPONDENT
RULING
The application by way Chamber summons dated 29th January, 2009 is filed under Rules 3(3), 58 and 59 of the Matrimonial Causes Rules and all other enabling provisions of law.
The Applicant seeks for orders:
1. That this Honourable court be pleased to order the committal of the Respondent to civil jail for failure to pay arrears of maintenance of KShs.675,000 for the period December, 2007 to January, 2009.
2. That this Honourable Court be pleased to give such further or other directions as it may deem fit and just to grant.
3. That the costs of this application be provided for.
The said application is supported on the grounds set forth on its face and on the supporting affidavit sworn by the Applicant EKK on 26th May, 2008.
It is averred that the Decree Nisi with Penal Notice was served on the Respondent on 19th March, 2008. The affidavit has annexed the order and its acknowledgment in writing by the Respondent and an affidavit of service of one WMV sworn on 19th March, 2009 (Annexture 1 and 2). It is also averred that as at January, 2009 the payment outstanding for maintenance awarded stand at KShs.675,000. The Respondent has failed to pay maintenance at all.
It is on record that by the Judgment of 30th November, 2007, the court ordered the Respondent to pay Shs.45,000 per month.
The Respondent has not responded to those averments but has filed grounds of opposition dated 5th June, 2009.
In short, it is contended that the application offends the provisions of order XXI Rules 18 and 32(1) of the Civil Procedure Rules and thus the orders prayed for are not available to the Applicant and cannot be granted.
It cannot be disputed that the Matrimonial Act with its Rules is a code by itself and the all relevant procedural laws have been specified in the Matrimonial Causes Rules. Wherever it was sought to apply the Civil Procedure Rules, the said rules make specific mention of the application of particular part of Civil Procedure Rules. I can cite Rule 9 (service out of time), Rule 25(3) (appointment of Examiner) and Rule 62 (pauper). I may note that otherwise the Rules are very specific in the provisions as regards procedure to be adopted in matrimonial proceedings.
Rule 58 deals with Attachment and committal and Rule 59 deals with Enforcement.
They stipulate:
“58. An application for attachment or committal shall be made to a judge, and any person attached or committed may apply to a judge for his discharge.
59. (1) In default of payment to any person of any sum of money at the time appointed for the payment thereof, an application may be made to a judge in chambers supported by affidavit (of service of the order and of non-payment), and the judge may make such order as to attachment of the person or of the property of the person so failing to pay as in the circumstances may seem expedient.
The procedure for attachment and committal thus are detailed under the aforesaid provisions without mentioning application of any provisions from the Civil Procedure Rules.
I shall thus tend not to agree on the grounds of opposition based on specific provisions of the Civil Procedure Rules which are not automatically applied to matrimonial proceedings.
The Respondent was duly served and has not come before the court as stipulated in Rule 59 or otherwise.
I thus reject the grounds of opposition and having satisfied that the Respondent was duly served and that he has defaulted in compliance of the court order I grant the application dated 29th January, 2009 as prayed.
I grant the order of committal of the Respondent to Civil Jail for a period of one month unless he pays the claimed sum of Shs.675,000 within 15 days from the date hereof. In failure of such payment, the order of committal to issue without any further application.
The Respondent shall also pay the costs of the Application.
Orders accordingly.
Dated, SignedandDelivered at Nairobi, this 16thday ofJuly, 2009.
K.H. RAWAL
JUDGE
16. 7.09